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§ 37. The Maxims of Equity. A maxim is a concise statement of a fundamental truth or principle. The maxims of equity are those maxims in accordance with which the remedies of the chancery courts are applied. These maxims are so uniformly observed that the most important of them form a sort of constitution or fundamental law for the equity system.27

"Equity will not suffer a wrong to be without a remedy.” This maxim is of the utmost importance, for it is the key to the whole system. Equity took its rise from the inability of the common-law courts to give full justice, and by asserting this principle it developed its peculiar system. Not only will it not suffer a wrong to be without a remedy, but it will see that the remedy is an adequate one.


"Equity delights to do justice and not by halves." This means that it is the aim of equity to have all interested parties in court, and to render a complete decree adjusting all rights and protecting the parties against future litigation.20

"Equity acts in personam." That is to say, when it renders its decree, it directs the various parties to perform such acts as are necessary to the doing of complete justice in the case; and, if they refuse to obey the directions of the court, they are guilty of contempt of court, and punished personally. A law court, on the other hand, would merely enter judgment, which is available against the person's property, rather than against the person himself.30

"Equity regards substance rather than form." By force of this principle equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law, because formally defective, or to impose a liability as against an evasion by a formal concealment of its true character.31


Equity looks upon that as done which ought to be done." Thus, if a contract is made and broken, and the breach is of such a nature that there is no adequate remedy at law, equity will grant what is known as "specific performance of the contract." Even though the complaining party has not performed all that he had promised, equity will assume that he has done so, for the purposes of the granting of the specific performance, in many cases.



Equity imputes an intention to fulfill an obligation." That is, when a man promises to do a certain thing, equity will assume that he intended to do it, until the contrary is shown; and, if he

27. See 16 Cyc. 133. 28. See 16 Cyc. 133. 29. See 16 Cyc. 134.

30. See 16 Cyc. 134.
31. See 16 Cyc. 134.
32. See 16 Cyc. 135.

does something which may be regarded as a partial fulfilment of such a promise, equity will so regard it.33

Equality is equity." For example, if equity should be called upon to apportion either assessments or dividends among several, it would apportion them equally, as far as possible.34

"Equity follows the law." That is, equity will observe legal rules so far as it can do so without hindering the application of its peculiar remedies.35

"Where the equities are equal, the first in order of time shall prevail." In other words, where there is no ground for decision in the character of the rights themselves, that right which has existed longest shall be enforced.36

"Where there is equal equity, the law must prevail." This maxim signifies that where the two parties have equal rights, but one of them has also a right at the common law which the other has not, the former is entitled to have his legal right enforced. He would, therefore, be sent back to the law courts for his remedy.37

"He who comes into equity must do so with clean hands." For example, if he claims fraud, he must himself be free from fraud, or the court will not listen to him.38


'He who seeks equity must do equity." Not only must he have clean hands, but he must be willing to do all that is right and fair in the transaction.39

"Equity aids the vigilant, not the indolent." Consequently it will not encourage a man in "sleeping on his rights." If he wishes to receive aid from the equity courts, he must be prompt in applying to them.40 This is known as the doctrine of laches. § 38. The Written Law in General. The written law of England consists of the acts of parliament. The written law of the federal government in the United States consists of the federal constitution, the treaties made by its authority, and the acts of congress. The written law of each individual State consists of its own constitution and the rules enacted by its legislature. All laws laid down by a legislative body, whether by parliament, congress, or a state legislature, are called "statutes." statutes." A statute may be defined as a law which a legislature creates by a single formal en


The fact that England has no "written constitution" in the sense in which the term is used in America is elsewhere noticed."

33. See 16 Cyc. 136. 34. See 16 Cyc. 137. 35. See 16 Cyc. 137. 36. See 16 Cyc. 139. 37. See 16 Cyc. 138.

38. See 16 Cyc. 144.
39. See 16 Cyc. 140.

40. See 16 Cyc. 140.

41. See supra, § 20; infra, § S1.

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The English constitution is therefore part of the unwritten law of England. In Germany, on the other hand, the constitution is written, as it is likewise in France and a number of other modern states. It was in America, however, that the idea of reducing constitutions to written form was first adopted and put into extensive practical operation. Written constitutions are usually revolutionary; that is, they usually follow a change of governmental form. It is with constitutions as it is with ordinary laws so long as the usual customary rules suffice, they are left in their unwritten form; but, when any radical change is desired, the more definite, positive rules of the written law are called into being.


England's only written law is that which is enacted by parliament. But in the United States we have not only our constitutions as part of the written law, but also the treaties which are made by our government with other nations. Treaties are, ordinarily, merely a part of the international law;12 and they would not be a part of the municipal law of this country were it not for the clause of the federal constitution which provides that "this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." 43 The effect of this provision is to make treaties a part of the municipal law of the United States; and, as they are created and promulgated in definite written form, they are a part of the written law.

Each State of the United States also has its constitution, which is part of the written law of that State. The constitutions of the States and of the United States, while forming the fundamental law of the land, deal only with those principles which lie at the base of our institutions, and form only a small part of the written law. The constitutions consist largely of general rules; statutes are specific, descending to particulars, and are necessarily much greater in bulk. From the fact of the prominence of the statutes, the whole body of the written law is often referred to, although inaccurately, as "statutory law." "A statute" is one of the units. of which the statutory part of the written law is composed. It may consist of a single rule of law, or of a collection of rules

42. All international law is, in one sense, part of the law of the land; for, when a nation becomes bound to observe international law rules, it will ordinarily require its own subjects to refrain from violating them.

Thus, the common law recognized certain crimes against the international law as a violation of its own principles.

43. U. S. Const. art. 6.

which are enacted at the same time, and which usually refer to the same subject-matter.

§ 39. Relation of the Written to the Unwritten Law. The written law supersedes the unwritten law so far as they are inconsistent with each other. The written law is invariably the result of some definite, authoritative act of creation on the part of the government of a State. The process of growth which is so characteristic of the unwritten laws is absent, and, in its stead, there is the certainty of an express act. The great mass of the law, is, as we have seen, unwritten. We have also seen that the unwritten law has within itself the power of change. But its changes are necessarily gradual, and often prove inadequate to the demands of the times. By legislation, on the other hand, the law may be changed instantaneously. Important changes must be made in this way, and it is the most convenient and certain way of making any change which is desired. As Mr. Holland remarks: "Legislation tends, with advancing civilization, to become the nearly exclusive source of new law."44

When a statute is passed the object of which is to change some part of the unwritten law, however, that part of the unwritten law is seldom expressly repealed. Indeed, it is seldom noticed at all in the statute. The legislature proceeds as if no law governing the subject existed. The courts, therefore, being bound to recognize the superior force of the express will of the legislature, apply the rule that, wherever a rule of the unwritten law is in conflict with a statutory or constitutional provision, the latter will govern, the former becoming invalid.


§ 40. The Constitution of the United States. As we have seen, the constitution of the United States was adopted by the States and went into effect March 4, 1789. It is purely a written constitution, and is not limited by any unwritten rules except those relating to its interpretation. It created the federal government the United States of America and provided for and defined the several departments, legislative, executive, and judicial, and their respective powers and functions. In adopting it, each State has surrendered to the federal government a portion of its authority, but all powers not thereby delegated to the federal government, nor prohibited by it to the States, are reserved to the States respectively, or to the people.48

The original constitution consists of seven articles. Article I vests all legislative powers in congress and provides for the constitution, election, functions, and powers of that body. Among the

44. Holland Jurisp. 65. 45. See supra, § 20.

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46. U. S. Const. art. 1-7; Amendm. art. 9, 10. And see 8 Cyc. 695, 771,

various functions delegated by the constitution to the federal government, and particularly to congress, as its legislative body, are the following: (1) To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States, all such duties, etc., however, to be uniform throughout the United States; (2) to borrow money on the credit of the United States; (3) to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; (4) to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies; (5) to coin money, regulate the values thereof, and of foreign coin, and to fix the standard of weights and measures; (6) to provide for the punishment of counterfeiting the securities and current coin of the United States; (7) to establish post-offices and post roads; (8) to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries (copyrights and patents); (9) to constitute tribunals inferior to the supreme court (like the federal circuit and district courts); (10) to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; (11) to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; (12) to raise and support armies, but no appropriation of money to that use to be for a longer term than two years; (13) to provide and maintain a navy; (14) to make rules for the government and regulation of the land and naval forces; (15) to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; (16) to provide, subject to certain qualifications, for organizing, arming, disciplining, and governing the militia; (17) to exercise exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may, by cession of particular States and the acceptance of congress, become the seat of the government of the United States (i. e. the District of Columbia), and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and (18) to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.47

Article I also contains express limitations on the powers of congress and the federal government. Thus it provides inter alia,

47. U. S. Const. art. 1, § 8.

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